Chief Ujile D. Ngere & Anor V. Chief Job William Okuruket ‘xiv’ & Ors (2014)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVOUR, J.S.C.

In the Notice of Motion filed on the 28th day of June, 2013 and brought under section 233(3) of the Constitution, section 27(1) and (2) of the Supreme Court Act, Order 2 Rules 28(1), (4) and 31, Order 6 Rule 2(1) and Order 8 Rule 4 of the Supreme Court Rules, and under the inherent jurisdiction of this Honourable Court the applicants pray for the following:

1. An order enlarging the time within which the applicants may seek leave to appeal on grounds of facts and/or mixed law and facts, against the judgment of the Court of Appeal, delivered on the 7th day of July, 1994.
2. An order granting the applicants leave to appeal against the judgment on grounds of facts and/or mixed law and facts:
3. An order enlarging time within which the applicants are to appeal against the judgment.
4. Such further orders as this Honourable Court may deem fit to make in the circumstances of this case.

In support of the application is a 40 paragraph affidavit filed on the 28th day of June, 2013, deposed to by the first applicant. Annexed to it are seven documents marked Exhibits BO1, BO2, BO3, BO4, BO5, BO6 and BO7. A 13 paragraph further affidavit filed on the 20th day of September 2013, deposed to by A. B. Ige Esq., a legal Practitioner in chambers of learned counsel for the applicants.

Opposing the application, learned counsel for the respondents filed a 20 paragraph counter-affidavit on the 31st day of July 2013, deemed properly filed and served on the 18th day of February 2014. It was deposed to by D. Ibegbu Esq., a legal Practitioner in chambers of learned counsel for the respondents.

Annexed to the counter-affidavit are documents marked Exhibits R1-R6.

This application is brought about nineteen years after judgment was delivered by the Court of Appeal on the 7th day of July, 1994.

At the hearing of the application on the 18th day of February 2014 learned counsel for the applicants,

Mr. O. Akoni, SAN adopted his brief filed on the 28th day of June, 2013 and his reply brief filed on the 18th day of February 2014.

Learned counsel for the respondents Chief Udechukwu, SAN adopted his brief deemed duly filed and served on the 18th day of February 2014.

In amplification of their briefs, learned counsel for the applicants explained the delay in filing this application. He submitted that the real issue in the appeal is jurisdiction. Learned counsel for the respondents vigorously opposed the application. He referred to paragraph 4 of his counter-affidavit for the reason why this application should not be granted.

The facts are these.

Ngo is a village in present day Rivers State. In 1970 it had serious problems selecting its village Head. The Chiefs found it very difficult to make a unanimous choice, and so the Government of the now defunct South Eastern State of Nigeria, which included Rivers State appointed, Mr. E. A. Udoh, as sole Commissioner to enquire into the Ngo Village Headship dispute. After hearing from, all sides the Sole Commissioner produced a Report in 1972. The Report is titled, “Report of Enquiry into Ngo Village Headship Dispute”. In that Report the sole Commissioner recommended to the Government of the South Eastern state that it recognize the 1st applicant’s predecessor as the right person to be made village Head (i.e. the Okan Ama of Ngo.) The Government accepted the Report of the Sole Commissioner. The respondents did not accept the Report. After a considerable length of time the respondents as plaintiffs filed suit No.BHC/41/86. In that suit they claimed the following:

(i) A declaration that the Chieftaincy stool of Okan Ama of Ngo Town exists as the known traditional title.

(ii) A declaration that the plaintiffs’ Uwuile family is the rightful family that keeps and maintains the Okan Ama title.

(iii) A declaration that the 1st plaintiff is the rightful Okan Ama of Ngo Town.

(iv) Perpetual Injunction restraining the defendants by themselves, their servants, their agents or privies from parading themselves as the Okan Ama of Ngo Town and from laying claim the Chieftaincy stool of Okan Ama Ngo Town.

The applicants were the defendants. They filed an application before a Rivers State High Court, asking that the suit be dismissed because according to them the court had no jurisdiction to determine the issues. ICHOKU, J presided. On the 9th day of June, 1987 his lordship overruled the objection of the applicants and ruled that he had jurisdiction to hear the case.

On 30th day of May, 1990, ICHOKU, J heard the same parties on the merits and entered judgment for the applicants. He dismissed the respondents’ case, and proceeded to rule that he had no jurisdiction to hear the case. Dissatisfied with this judgment plaintiffs/respondents filed an appeal. The Court of Appeal delivered judgment on the 7th day of July 1994. The Court of Appeal allowed the respondents appeal and remitted the case back to the trial court for retrial before another judge. In one breath the learned trial judge ruled that he had jurisdiction to hear the case and in yet another breath he ruled that he does not have jurisdiction to hear the case. The Court of Appeal now, sends the case back for retrial when the issue of jurisdiction is unresolved. This application is brought because the applicants who were respondents in the Court of Appeal are dissatisfied with that court’s judgment delivered on the 7th day of July, 1994 ordering a retrial of the case before another judge of the High Court. They seek to appeal against the retrial order.

The issues for determination are:

1. Whether the applicants whilst still in disobedience of the orders of the Court of Appeal are entitled to a hearing in respect of their prayers seeking leave to appeal against the judgment of the Court of Appeal delivered on 7/7/94.
2. Whether there was compliance with section 233(3) of the Constitution and Order 2 Rule 28(4) of the Supreme Court Rules.
3. When would this court grant an applicant enlargement/extension of time to appeal.

Learned counsel for the applicants Mr. O. Akoni, SAN observed that by virtue of section 233(3) of the Constitution and Order 2 Rule 28(4) of the Supreme Court Rules this application ought to have been brought before the Court of Appeal before it can be brought here. He further observed that this was not possible due to inadvertent error of counsel for the applicants twenty years ago when this application ought to have been brought. Relying on section 27(4) of the Supreme Court Act he submitted that this court is vested with Sole jurisdiction to grant an extension of time whether to extend time to seek leave to appeal or simply to appeal without the need to seek leave. Reliance was placed on Afribank v. Akwara 2006 1 SC (Pt. ii) p.47.

Holman Bros Ltd v. Ltd 1980 8-11 SC p.27

Learned counsel observed that what was required was for the applicant to show

(a) good and substantial reasons for failure to appeal within the prescribed period, and;

(b) ground/s of appeal which prima facie show good cause why the appeal should be heard.

Reliance was placed on FHA v. Kalejaiye 2010 12 SC (Pt. iii) p1.

Enyibros Processing & Anor v. NDIC & Anor 2007 3 SC (Pt. ii) p.175.

Paragraphs 6 to 35 of the affidavit in support of the application. He submitted that the reason for the delay in appealing within time was as a result of the unfortunate inadvertence of counsel for the applicants. Relying on Nwora v. Nwabueze 2011 15 NWLR (Pt. 1271) p.467

Akinpelu v. Adegbore & 3 Ors 2008 4-5 SC (Pt. ii) p.75.

He submitted that the reason for the delay is good. On (b) learned counsel observed that the proposed grounds of appeal reveal substantial and arguable grounds which show why the appeal should be heard.

On jurisdiction learned counsel observed that the length of time before the application is brought is irrelevant if the judgment sought to be appealed against was given without jurisdiction. He submitted that since jurisdiction is a strong point in this application, the application should be granted as it is never too late to appeal against a judgment given without jurisdiction. He urged this court to grant the application. Learned counsel finally observed that his clients cannot be in contempt or abuse of the judicial process where they are seeking to exercise a constitutional right of appeal. Reliance was placed on F.A.T.B. v. Ezegbu 1992 9 NWLR (Pt. 264) p.132

PDP v. Adeyemi 2002 10 NWLR (Pt. 776) p.529

Odogwu v. Odogwu 1992 2 NWLR (Pt. 225) p.539

He urged this court to grant the reliefs sought in the motion paper, allowing the applicants to exercise their constitutional right of appeal.

Opposing the application learned counsel for the respondents observed that the application is inequitable and oppressive to the respondent since the case has been concluded on amended pleadings and there is an appeal pending on same before the Supreme Court. Reference was made to SC/54/12.

He further observed that the appeal is being made nineteen years after judgment of the Court of Appeal and the issue of jurisdiction raised in this application has been raised in SC/54/12. He submitted that the fact that the applicants decided to change their counsel in 2012, cannot be a good and substantial reason for the failure to appeal within the prescribed period. Reference was made to A. Ojora v. S. A. O. Bakare 1976 1 SC p.26.

He argued that the applicants are estopped from appealing against the decision of the Court of Appeal delivered in 1994 prior to the amendment of the Writ of Summons and statement of Claim, contending that even if they had a right of appeal, it ceased to exist once the Writ of Summons and Statement of Claim were amended. Reliance was placed on Alade v. Alemulike 1988 1 NWLR (Pt. 69) p207.

Noibi v. Fikolati 1987 1 NWLR (Pt. 52) p.619

Learned counsel observed that the reliefs claimed should not be granted since the applicants including the 1st applicant are still disobeying an injunctive order of the Court of Appeal which restrained them from laying claim to the stool of Okan-Ama of Ngo. Reliance was placed on section 287 (3) of the Constitution.

A.G. Anambra State v. A.G. Federal Republic of Nigeria and 35 Ors 2005 9 NWLR (Pt. 935) p.572

Concluding he observed that the applicants have not shown prima facie grounds of appeal showing good and substantial reasons why the appeal should be heard in terms of their prayers for extension of time to appeal.

ISSUE 1

Whether the applicants whilst still in disobedience of the orders of the Court of Appeal are entitled to a hearing in respect of their prayers seeking to appeal against the judgment of the Court of Appeal delivered on 7/7/94.

The Court of Appeal granted a perpetual injunction restraining the applicants from laying any claim to the stool of Okan-Ama of Ngo yet while that order still stands the 1st applicant in his affidavit introduced himself as of the Palace of Okan-Ama Ngo. This amounts to disobedience of the orders of the Court of Appeal. The question to be answered is whether the 1st applicant (who is now a contemnor) should be heard and can be entitled to the discretion of this court

Section 287(3) of the Constitution reads:

“(3) The decisions of the Federal High Court the National Industrial Court, a High Court and of all other courts established by this Constitution shall be enforced in any part of the federation by all authorities and persons, and by other courts of law with subordinate jurisdiction to that of the Federal High Court, the National Industrial Court, a High Court and those other courts, respectively.”

The judgment of a court of competent jurisdiction subsist until upset on appeal. While the judgment subsists every person affected by it or against whom an order is made must obey it even if it appears wrong. Judgments take effect immediately they are delivered and every court has inherent power to proceed to enforce judgments at once. The enforcements on delivery can only be interrupted by a stay of execution provided there is an appeal.

Parties are thus bound to obey court orders that are clear and unambiguous, notwithstanding the fact that the order may be wrong. So long as a party refuses to implement or obey a court order he would not be given a hearing in any subsequent application. See Odogwu v. Odogwu 1992 2 NWLR (Pt. 225) p.539

Governor of Lagos State v. Ojukwu 1986 3 NWLR (Pt. 26) p.39

There are exceptions to the above. A party in disobedience of a court order may be heard in subsequent application if –

(a) the party seeks to appeal against the order of which he is in contempt,

(b) he challenges the order on the ground of lack of jurisdiction;

(c) the order ought not to be sustained because there were procedural irregularities in the process of making the order.

The above are some of the instances when a party in disobedience of a court order may be heard in a subsequent application. The applicants application falls within the above instances especially (a). Since the applicants (1st applicant’s) disobedience has not impeded the course of justice in this case by making it difficult for the court to find out the truth, together with the fact that the applicants are not asking this court to exercise its discretion to grant equitable reliefs, but to allow him exercise his constitutional right to appeal the court ought to exercise its discretion to hear the appeal, if the applicant satisfies the court that he is entitled to be allowed to appeal.

ISSUE 2

Whether there was compliance with Sections 233(3) of the Constitution and Order 2 Rule 28(4) of the Supreme Court Rules.

Section 27 of the Supreme Court Act provides for appealing. It reads:

(2) The periods prescribed for the giving of notice of appeal or notice of application for leave to appeal are –

(a) in an appeal in a civil case, fourteen days in an appeal against an interlocutory decision and three months in an appeal against a final decision.

(b) in an appeal in a criminal case thirty days from the date of the decision appealed against.

(3) ……………

(4) The Supreme Court may extend the period prescribed in subsection (2) of this section.

This is a Civil appeal, and by virtue of section 27(2) (a) the applicant had three months to appeal from the Court of Appeal judgment delivered on 7th of July 1994. The applicants had a Constitutional right of appeal if they appealed within three months from the 7th of July, 1994, but since they were unable to appeal within that time, Order 2 Rule 31 of the Supreme Court Rules provides succor, it provides for enlargement of time, and in applications such as this where leave (i.e. permission) is required since the grounds of appeal do not involve questions of law alone, (Section 233 (2) (a) and (3) of the Constitution) the applicants must seek leave.

Now, Order 28 Rule 4 of the Supreme Court Rules states that –

“(4) Wherever under these Rules an application may be made either to the court below or to the court it shall not be made in the first instance to the court except there are exceptional circumstances which make it impossible or impracticable to apply to the court below.”

The applicants did not file their application in Court of Appeal. This application was made in first instance to this court. Is this correct

An application for leave to appeal is an appeal. This is a civil appeal. By the provisions of section 27

(2) (a) of the Supreme Court Act, the applicant had three months to appeal against the judgment of the Court of Appeal, delivered on 7/7/94. As at 8/10/94 the Court of Appeal no longer had jurisdiction to grant the applicants leave to appeal.

Consequently it is impossible or impracticable for the applicants to go before the Court of Appeal seeking leave to appeal nineteen years after the 7th day of July 1994. By virtue of subsection (4) of section 27 of the Supreme Court Act this court may extend the period of three months stipulated in section 27 (2) (a) supra. Filing this application in the first instance in this court is very much in order.

ISSUE 3

What is required of an applicant applying to the Supreme Court for enlargement/extension of time within which to appeal.

I must emphasize the importance of leave and asking for it, since this is an application that requires leave.

Leave means permission. Where the Rules provide for leave before a process is filed, and the process is filed without leave such a process would be thrown out, it being null and void. The applicants were right to apply for leave.

The grant of an application for extension of time to appeal is a matter within the discretion of the judge. That discretion is properly exercised if the judge considers the rules governing the particular application before granting the application. In an application for extension of time within which to appeal, the affidavit in support of the application must be detailed on –

(a) good and substantial reasons for failure to appeal within the prescribed period, and

(b) grounds of appeal which prima facie show good cause why the appeal should be heard.

Good reasons for delay and arguable grounds of appeal, not necessarily grounds of appeal that would succeed must co-exist before an application for extension of time to appeal can be granted. Where the judge exercises his discretion in the absence of (a),(b) above he would be acting as be likes, and giving the applicant uninhibited right to extension of time thereby defeating the purpose of the rules and putting the conduct of litigation in disarray.

A judge would readily accede to an application for extension of time to appeal if a good ground for the appeal is on jurisdiction. Where this happens to be the case the application would be granted even if no good reasons for the delay are before the court.

On (a) above the applicant is expected to give a detailed explanation for the delay. He should show something that entitles him to the exercise of the courts discretion. e.g. pardonable inadvertence, mistake or negligence of counsel. See

Adeyemi v. YRS Ike Oluwa & Sons Ltd 1993 8 NWLR (Pt. 309) p.27

FHA v. Kalejaiye 2010 12 SC (Pt iii) p.1

Ibodo v. Enarofia 1980 5-7 SC p.42

Kotoye v. Saraki 1995 5 NWLR (Pt. 395) p.256

Akinpelu v. Adegbore & 3 Ors 2008 4-5 SC (Pt. iii) p.75

Nwora v. Nwabueze 2011 15 NWLR (Pt. 1271) p.467

According to learned counsel for the applicants the reasons for the delay can be explained as follows:

“Iyagba, Esq. represented the applicants at first trial. By the time retrial was ordered Iyagba, Esq. was ailing and the applicants had to instruct another counsel. The applicants new counsel that took over from Iyagba did not advice the applicants that an appeal be filed against that appellate decision which ordered retrial.”

Learned counsel concluded, that this application should be granted because of the very unfortunate inadvertent mistake of the former counsel of the applicants.

The well laid down position of the law is that when counsel is briefed to handle a case and he accepts the brief, he has authority to decide within his own knowledge of the law how to conduct the case, and the client is bound by how the counsel conducts the case. The remedy open to the client if he is not satisfied with counsel is to withdraw the brief or sue for professional negligence if that appears to be the case.

The question arising in this application is whether the decision by the applicants former unnamed counsel not to appeal against the judgment of the Court of Appeal ordering a retrial amounts to inadvertent mistake of former counsel. To my mind it is not. The former counsel saw no reason to appeal against the Court of Appeal’s decision. The fact that present counsel would have appealed does not make the decision of former counsel not to appeal wrong. Former counsel decided to go for retrial as directed by the Court of Appeal, amended his pleadings and proceeded to trial. It might well turn out that he was wrong, but he may also be right. This court would exercise is discretion to extend time to appeal once satisfied that the failure to appeal within time was caused by pardonable inadvertence, carelessness or negligence of counsel.

The length of time is immaterial if the applicant is able to show good cause or substantial reasons for the delay. That is to say if undue delay is not explained to the satisfaction of the court the application would fail. The reasoning being that when no credible excuse is given no indulgence can be granted.

After the Court of Appeal delivered its judgment on 7/7/94 ordering a retrial, the former counsel had two options, (1) to comply with the judgment of the Court of Appeal or (2) appeal. He decided to comply with the Court of Appeal judgment and that to my mind is within his professional competence. By no stretch of imagination can it be said that the course the former counsel took amounts to inadvertence or mistake. In the circumstances the applicants have failed to explain the undue delay of nineteen years before this application was brought.

The rule does not say that the grounds of appeal should succeed rather it says that the grounds of appeal should show good cause why the appeal should be heard. A ground of appeal which shows good cause why the appeal should be heard is one which raises substantial issues of fact or law. It is a serious issue of jurisdiction when the High Court delivers conflicting Rulings on jurisdiction. The applicants ground of appeal on jurisdiction justifies the hearing of this appeal. It is usually the practice of the courts that where the ground of appeal is substantial, the court may be inclined to grant the application even if the reason for delay is not substantial. This is premised on the reasoning that an applicant with an arguable appeal should not be denied his constitutional right to appeal. See Adewumi v. Osibanjo 1988 3 NWLR (Pt. 83) p.483.

Where as in this application the proposed grounds of appeal complain of lack of jurisdiction and it is a strong and arguable point it would no longer be necessary to look into the reasons for the delay. Jurisdiction is a question of law. A fundamental issue in every case. A constitutional issue that can be raised at any time. See

Usman Dan Fodio University v. Kraus Thompson Organization 2001 15 NWLR (Pt. 736) p.305

Oloba v. Akereja 1988 3 NWLR (Pt. 84) p.508

Ukwu v. Bunge 1997 8 NWLR (Pt. 518) p.527

This application should be granted because the jurisdiction issue is very important. Whether a High Court can give a Ruling saying that it has jurisdiction, then proceed to hear the case on the merits after the issue of jurisdiction had been settled, then reverse itself and say it does not have jurisdiction. This appeal challenges the order of retrial made by the Court of Appeal and not the appeal that emanated from the retrial on amended pleadings now pending in this court as SC.54/2012. I fail to see how the grant of this application would be oppressive to the Respondent. After all this application is granted SC.54/2012 ought to be withdrawn.

The grant of this application is geared towards ensuring that justice is done between the parties. A party should never be denied the right of appeal if he satisfies the conditions for appeal. In this case the applicants have satisfied this court to exercise its discretion in their favour because of the serious ground on jurisdiction.

Application is granted.

Time is extended to today for the applicants to seek leave to appeal.

Leave is granted the applicants to appeal on grounds of facts and/or mixed law and facts against the judgment of the Court of Appeal delivered on 7/7/94 in appeal No. CA/PH/210/90.

Time is extended by 21 days from the date of this Ruling for the applicants to appeal against the said judgment.

Costs of N50,000.00 to the respondents.

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SC.335/2012